Group That Sued Pfizer Over Diversity Program Loses Appeal

A U.S. appeals court on Wednesday upheld the dismissal of a lawsuit by a conservative group opposed to diversity initiatives in medicine that challenged a Pfizer fellowship program designed to boost the pipeline of Black, Latino and Native American people in leadership positions at the drugmaker.

The New York-based 2nd U.S. Circuit Court of Appeals ruled the Virginia-based non-profit organization Do No Harm lacked standing to challenge the drugmaker’s program, saying “it did not identify by name a single member injured by Pfizer’s alleged discrimination.”

Pfizer in a statement welcomed the ruling, saying it was an “equal opportunity employer and is proud of its commitment to diversity, equity and inclusion.”

Do No Harm in a statement said it would seek further appellate review of the court’s decision, “which departs from established precedent and makes it unduly hard for organizations to vindicate civil rights.”

The group said it counts doctors, medical students and others as members and aims “to protect healthcare from radical, divisive and discriminatory ideologies.”

Do No Harm sued Pfizer in 2022 over the company’s Breakthrough Fellowship Program, which aimed to increase the pipeline of Black, Latino and Native American leaders, arguing it discriminated against white and Asian-American applicants.

Pfizer altered the program’s criteria while the case was pending and now anyone can apply.

The lawsuit was filed a month before the U.S. Supreme Court heard arguments in cases in which its conservative majority would later in June 2023 declare unlawful race-conscious college admissions policies used by Harvard University and the University of North Carolina.

That decision, while focused on college admissions, has prompted a wave of lawsuits challenging diversity programs at companies, some of which have since altered their policies.

The lawsuit against Pfizer claimed its program violated laws including Section 1981 of the Civil Rights Act of 1866, which bars racial bias in contracting, and Title VI of the Civil Rights Act of 1964, which protects employees and job applicants from racial discrimination.

In Wednesday’s opinion, U.S. Circuit Judge Beth Robinson said Do No Harm claimed to have standing to challenge the program because two anonymous white or Asian-American members of the group claimed they could not apply to the fellowship.

But Robinson, an appointee of Democratic President Joe Biden, said Do No Harm never disclosed the identities of either member to the court and that as a result a lower court judge rightly concluded it failed to establish standing.

Two other 2nd Circuit judges agreed to affirm the case’s dismissal. One of them, U.S. Circuit Judge Richard Wesley, an appointee of Republican former President George W. Bush, only partially concurred, saying the two other judges went too far by imposing a rule requiring associations to name their members to prove standing.

“That is an unfortunate ruling for organizations everywhere,” Wesley wrote.